Valle v. Colvin

Filing 31

ORDER by Magistrate Judge Jacqueline Scott Corley granting 26 Plaintiff's Motion for Attorney Fees. (ahmS, COURT STAFF) (Filed on 1/18/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANA VALLE,
Plaintiff,

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United States District Court
Northern District of California

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Case No.16-cv-02358-JSC
ORDER RE MOTION FOR
ATTORNEYS’ FEES

v.
NANCY A. BERRYHILL,

Dkt. No2. 26, 27

Defendant.

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In this Social Security case, Plaintiff Ana Valle seeks attorneys’ fees under the Equal

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Access to Justice Act (“EAJA”) following this Court’s remand of her disability insurance benefits

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case for an award of benefits. (Dkt. Nos. 26, 27.) Because the Social Security Commissioner

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does not contest the substantial justification of the original action, and the fees sought by Plaintiff

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are reasonable, Plaintiff’s motion is GRANTED, as explained below.

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BACKGROUND
This case stems from Plaintiff’s appeal of the Social Security Administration’s denial of

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her application for disability benefits for a combination of physical and mental impairments,

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including: status post breast cancer, status post bilateral breast mastectomy and breast

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reconstruction, chronic pain, fibromyalgia, and depression. On August 29, 2017, the Court

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granted Plaintiff’s motion for summary judgment, denied the Commissioner’s cross-motion for

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summary judgment, and remanded for an award of benefits concluding that the Administrative

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Law Judge (“ALJ”) committed legal error by improperly discounting Plaintiff’s testimony and the

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opinions of her doctors. (Dkt. No. 23.) Plaintiff then filed the underlying motion for EAJA fees in

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the amount of $23,181.68 for time spent appealing the ALJ’s decision. (Dkt. No. 26.) In her reply

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brief, Plaintiff requested an additional $1,910.51 in additional fees for litigating the current

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motion. (Dkt. No. 30.)
LEGAL STANDARD

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A court shall award a prevailing party its fees and expenses in an action against the United

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States unless “the position of the United States was substantially justified or special circumstances

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make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The Supreme Court has defined “substantially

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justified” as “justified in substance or in the main–that is, justified to a degree that could satisfy a

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reasonable person,” or having a “reasonable basis both in law and fact.” Pierce v. Underwood, 487

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U.S. 552, 565 (1988). The government bears the burden of establishing substantial justification.

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Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
If the government’s position was not substantially justified, then the plaintiff may be

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United States District Court
Northern District of California

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eligible for an award of fees under the EAJA; however, eligibility is not an automatic award.

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Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). Rather, the plaintiff must prove that the fees

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sought are reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001) (“The burden is on

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the plaintiff to produce evidence that the requested rates are in line with those prevailing in the

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community for similar services by lawyers of reasonably comparable skill, experience, and

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reputation.”) (internal quotation marks omitted).

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DISCUSSION
Plaintiff moves for a total fee award of $25,092.19. (Dtk. No. 30.) The Commissioner

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does not contend that its position here was substantially justified. Plaintiff is therefore entitled to

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an award as a prevailing party under 28 U.S.C. § 2412(d). See Gutierrez, 274 F.3d at 1258 (“It is

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the government’s burden to show that its position was substantially justified.”). The only dispute

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between the parties is whether the number of hours expended on the appeal was reasonable.

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A. The Fees Sought are Reasonable

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When awarding a party attorneys’ fees pursuant to the EAJA, the Court must determine the

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reasonableness of the fees sought. Sorenson, 239 F.3d at 1145. The starting point for determining

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whether a fee is reasonable is “the number of hours reasonably expended on the litigation

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multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The

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appropriate number of hours includes all time “reasonably expended in pursuit of the ultimate
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result achieved, in the same manner that an attorney traditionally is compensated by a fee-paying

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client for all time reasonably expended on a matter.” Hensley, 461 U.S. at 431. The applicant must

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exercise “billing judgment,” i.e., the fees must be for services for which a private client would

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pay. Hensley, 461 U.S. at 434 (“Hours that are not properly billed to one’s client also are not

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properly billed to one’s adversary pursuant to statutory authority.”); Moreno v. City of

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Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). Courts should generally “defer to the winning

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lawyer’s professional judgment as to how much time he was required to spend on the case.”

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Moreno, 534 F.3d at 1112.
Here, Plaintiff has submitted declarations from the two attorneys who worked on her case:

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Steven Bruce, the Legal Director of the People with Disabilities Foundation who billed 37.8 hours

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United States District Court
Northern District of California

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of time on this matter (plus an additional .75 hours for preparation of the reply on the underlying

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motion for fees), and Timothy Carter, a Staff Attorney at the People with Disabilities Foundation

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who billed 79.1 hours of time (plus an additional 9 hours for preparation of the reply on the

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underlying motion for fees). (Dkt. Nos. 26-1, 26-4, 30.) There is no dispute as to the hourly rate

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for either Mr. Bruce or Mr. Carter. Rather, the Commissioner objects to the fees as excessive in

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light of the “routine issues” presented and the “experienced” counsel involved. (Dkt. No. 29 at

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4:16, 5:7.1) The Commissioner contends that Plaintiff is entitled to no more than $11,259.93 in

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fees. For the reasons discussed below, the Court concludes that Plaintiff is entitled to the full

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amount of fees and costs requested.
First, courts may not apply de facto caps limiting the number of hours attorneys can

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reasonably expend on “routine” social security cases. See Costa v. Comm'r of Soc. Sec. Admin.,

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690 F.3d 1132, 1133-37 (9th Cir. 2012) (“we question the usefulness of reviewing the amount of

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time spent in other cases to decide how much time an attorney could reasonably spend on the

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particular case before the court.”). Although “a district court will always retain substantial

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discretion in fixing the amount of an EAJA award,” Comm’r, I.N.S. v. Jean, 496 U.S. 154, 163

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(1990), a reduction of fees greater than 10 percent requires clear, specific, and persuasive reasons

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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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from opposing counsel. Moreno, 534 F.3d at 1112, 1116 (allowing no more than a 10–percent

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“haircut” at the court’s discretion). The Commissioner’s proposal here would result in a more

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than 50 percent reduction in the amount of fees and the amount of hours for which counsel is

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compensated. This is a clear contravention of Ninth Circuit precedent: “courts cannot drastically

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reduce awards simply because the attorney has requested compensation for more than forty hours

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or make reductions with a target number in mind. Instead, district courts must explain why the

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amount of time requested for a particular task is too high. Any other approach fails to give

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deference to the winning lawyer’s professional judgment.” Costa, 690 F.3d at 1136.
Second, social security cases are not “routine”; rather, they “are often highly fact-intensive

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and require careful review of the administrative record, including complex medical evidence.” Id.

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United States District Court
Northern District of California

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at 1134 n.1. The administrative record in this case was over 1,100 pages, including numerous

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medical records detailing Plaintiff’s multiple physical and mental health conditions, as well as

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reports from six different physicians regarding her physical and mental health issues. That

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Plaintiff’s counsel cumulatively spent around 53 hours reviewing this record, researching the legal

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issues, and drafting the motion for summary judgment is not unreasonable given the voluminous

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medical record and the need to address the ALJ’s weighing of the medical evidence with respect to

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the findings of six different physicians. See, e.g., Yesipovich v. Colvin, No. 15-00112 WHA, 2015

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WL 5675869, at *7 (N.D. Cal. Sept. 28, 2015) (concluding that 49.67 hours were compensable

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given that the case was highly fact intensive, involved many administrative proceedings, and a

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voluminous administrative record); Stevenson v. Astrue, No. 10-04837 LB, 2012 WL 5412704, at

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*6 (N.D. Cal. Nov. 6, 2012) (rejecting argument that 59.3 hours was excessive because “[e]ach

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case has its own unique facts, which must be stated clearly and concisely, and each brief must

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contain arguments set forth in a coherent and persuasive way.”). The same is true for the over 30

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hours spent on the reply brief. As the Court’s 24-page Order demonstrates, Plaintiff’s case was

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factually complex and required substantial analysis of numerous issues, including the ALJ’s

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treatment of her credibility and the opinions of her numerous medical sources.

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Finally, that one of Plaintiff’s attorneys is experienced in social security law is not a basis
to reduce his requested hours. See, e.g., Bell v. Berryhill, No. 16-CV-00809-MMC, 2018 WL
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452110, at *4 (N.D. Cal. Jan. 17, 2018) (holding that the fact that plaintiff’s attorneys are

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experienced in Social Security law does not suffice to warrant a reduction in the claimed hours);

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Arik v. Astrue, No. 08-cv-05564-SBA (LB), 2011 WL 1576711, at *6 (N.D. Cal. Apr. 26, 2011)

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(holding counsel’s expertise does not necessarily justify a reduction in hours), report and

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recommendation adopted, 2011 WL 2470907 (N.D. Cal. Jun. 22, 2011). The Commissioner’s

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insistence that counsel’s experience mandates that he and Mr. Carter should have been able to do

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the work necessary in half as much time is unsupported by any legal authority and unpersuasive.

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See Arik, 2011 WL 1576711, at *6 (finding defendant’s “arguments with regard to the amount of

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time spent on various tasks...appear to be based on defense counsel’s own opinion, and
[defendant] does not provide any expert or other credible authority to suggest that the time billed

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United States District Court
Northern District of California

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is unreasonable”).

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Accordingly, the Court concludes that Plaintiff’s request for $25,092.19 in fees is
reasonable.

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B. Plaintiff is entitled to Fees for Preparing this EAJA application

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Under EAJA, a prevailing party is entitled to fees incurred in protecting the EAJA fee

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award in subsequent litigation by the Government over the amount of the EAJA fee award. Jean,

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496 U.S. at 161; see also Love v. Reilly, 924 F.2d 1492, 1497 (9th Cir. 1991). Plaintiff’s request

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for $1,910.51 for 9.75 additional hours of work preparing the reply brief is also reasonable. See,

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e.g., Lauser v. Colvin, No. 13-05990-MEJ, 2015 WL 1884330, at *5 (N.D. Cal. Apr. 23, 2015)

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(awarding $1,110.21 for fees for preparing of the reply brief); Smith v. Astrue, 2012 WL 3114595,

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at *5 (N.D. Cal. July 31, 2012) (granting a request for fees for 2.6 hours of work spent preparing

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the reply brief on the fees motion).

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C. The Fee Award Should be Paid Directly to Counsel

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According to the EAJA, “a court shall award to a prevailing party ... fees and other

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expenses ... incurred by that party in a civil action (other than cases sounding in tort) ... unless the

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court finds that the position of the United States was substantially justified.” 28 U.S.C. §

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2412(d)(1)(A) (emphasis added). In Astrue v. Ratliff, 560 U.S. 586, 594 (2010), the Supreme

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Court considered this provision of the EAJA and whether it makes a fee payable to the prevailing
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party or the attorney. The Supreme Court noted the absence of language in the EAJA explicitly

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directing fees to attorneys and compared EAJA with a provision in the Social Security Act making

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fee awards payable “to such attorney.” Id. at 595 (citing 42 U.S.C. § 406(b)(1)(A)). In so doing,

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the Court concluded that “given the stark contrast between the SSA’s express authorization of

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direct payments to attorneys” and the absence of such language in EAJA, it would not interpret

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EAJA to “contain a direct fee requirement absent clear textual evidence supporting such an

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interpretation.” Id. at 595.

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Nevertheless, courts in this district have concluded that Ratliff does not prevent payment of
a fee award directly to the attorney if there has been a valid assignment and the plaintiff does not
owe a debt to the government. See Hampton v. Colvin, No. 13-CV-04624-MEJ, 2015 WL

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United States District Court
Northern District of California

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1884313, at *7 (N.D. Cal. Apr. 23, 2015); Yesipovich v. Colvin, No. 15-00112-WHA, 2015 WL

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5675869, at *8 (N.D. Cal. Sept. 28, 2015); Neilsen v. Colvin, No. 13-173-NJV, 2014 WL

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1921317, at *3 (N.D. Cal. May 13, 2014); Lloyd v. Astrue, No. 11-4902-EMC, 2013 WL 3756424,

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at *4 (N.D. Cal. July 16, 2013); Palomares v. Astrue, No. 11-4515-EMC, 2012 WL 6599552, at

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*9 (N.D. Cal. Dec. 18, 2012. As Plaintiff assigned her EAJA fees to Mr. Bruce (Dkt. No. 26-3),

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Plaintiff’s award, subject to any debt offset, shall be paid directly to Plaintiff’s counsel.
CONCLUSION

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For the foregoing reasons, Plaintiff’s motion for an award of attorneys’ fees pursuant to
EAJA in the amount of $25,092.19 is GRANTED. (Dkt. No. 26.)

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IT IS SO ORDERED.
Dated: January 18, 2018

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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